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Federal Communications Commission DA 04-397
Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of )
)
CUMULUS LICENSING CORP., ) File No. EB-03-IH-0257
) NAL Account No. 200432080015
Licensee of Station WSEA-FM, ) Facility ID No. 3221
Atlantic Beach, South Carolina ) FRN No. 0005260377
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 17, 2004 Released: February 19, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
l. In this Notice of Apparent Liability for Forfeiture (“NAL”), we find that, on March 7,
2003, Cumulus Licensing Corp. (“Cumulus”), licensee of Station WSEA(FM), Atlantic Beach, South
Carolina, apparently violated section 73.1206 of the Commission’s rules, which relates to the broadcast of
telephone conversations.’ Based upon our review of the facts and circumstances in this case, and for the
reasons discussed below, we conclude that Cumulus is apparently liable for a monetary forfeiture in the
amount of Four Thousand Dollars ($4,000.00).
I. BACKGROUND
2, We received a complaint that, on March 7, 2003, Cumulus broadcast a telephone
conversation between Dan Hockert, a Cumulus radio personality, and Anne Crutchman, a receptionist for
a radio station that is a WSEA(FM) competitor, without Ms. Crutchman’s knowledge.? Mr. Hockert
apparently called the competing radio station, and Ms. Crutchman answered the telephone and identified
the competing station. Without identifying himself and without informing Ms. Crutchman that the
telephone call was going to be broadcast, Mr. Hockert asked Ms. Crutchman if his friend “Emily” was in
the lobby. Ms. Crutchman confirmed that a person identifying herself as Emily was there. Mr. Hockert
asked if he could speak with Emily and Ms. Crutchman said that he could and asked him to hold. Mr.
Hockert then asked Emily several times to state from whom she had won concert tickets, asking her to
loudly identify Cumulus’ station several times in the lobby of its competitor. Ms. Crutchman
immediately related the incident to the program director of the competing radio station. The program
director made a cassette copy of the telephone conversation as it was being broadcast.? Ms. Crutchman
! 47 C.F.R. § 73.1206.
? See Letter from Anne Crutchman to the Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated March 28, 2003 (“Letter Complaint”).
3 Td. at 1.
Federal Communications Commission DA 04-397
enclosed the cassette with her complaint.
3. On October 27, 2003, the Commission sent a letter of inquiry (“LOT”) to Cumulus,
enclosing as Attachment A to the LOI a transcript of the cassette copy of the telephone conversation
broadcast by Cumulus.* The Commission asked Cumulus whether one of its stations broadcast the
telephone conversation transcribed in Attachment A to the LOI, and if so, whether Cumulus informed all
parties to the conversation that it was going to be broadcast. The Commission asked Cumulus to verify
the accuracy of the transcript of the broadcast, and to provide their own audio recordings, transcripts or
other documentation of the broadcast of the telephone conversation. In its response to the LOI, Cumulus
states that it broadcast a telephone conversation that was “similar if not identical” to the one transcribed in
Attachment A to the LOI.* Cumulus also states that Ms. Crutchman was not informed that her telephone
conversation with Mr. Hockert would be broadcast.® Cumulus states that WSEA(FM) has a copy of
relevant Commission rules, and Cumulus now requires that its Myrtle Beach on-air employees state in
writing that they understand and will abide by section 73.1206 of the Commission’s rules.’
II. DISCUSSION
4. Under section 503(b)(1) of the Act, * any person who is determined by the Commission
to have willfully or repeatedly failed to comply with any provision of the Act or any rule, regulation, or
order issued by the Commission shall be liable to the United States for a monetary forfeiture penalty. In
order to impose such a forfeiture penalty, the Commission must issue a notice of apparent liability, the
notice must be received, and the person against whom the notice has been issued must have an
opportunity to show, in writing, why no such forfeiture penalty should be imposed.” The Commission
will then issue a forfeiture if it finds by a preponderance of the evidence that the person has violated the
4 Letter from Maureen F. Del Duca, Chief, Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission to Cumulus Media, Inc., dated October 27, 2003 (“LOT”).
> Letter from Richard S. Denning, General Counsel, Cumulus Licensing Corp. to David Janas, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission, dated November 26, 2003, at 2
(“Cumulus Response to Inquiry’).
ê Jd,
7 Td. at 3.
8 47 U.S.C. § 503(b)(1)(B); 47 C.F.R. § 1.80(a)(1); see also 47 U.S.C. § 503(b)(1)(D) (forfeitures for violation of 14
U.S.C. § 1464). Section 312(f)(1) of the Act defines willful as “the conscious and deliberate commission or
omission of [any] act, irrespective of any intent to violate” the law. 47 U.S.C. § 312(f)(1). The legislative history to
section 312(f)(1) of the Act clarifies that this definition of willful applies to both sections 312 and 503(b) of the Act,
H.R. Rep. No. 97-765, 97" Cong. 2d Sess. 51 (1982), and the Commission has so interpreted the term in the section
503(b) context. See, e.g., Application for Review of Southern California Broadcasting Co., Memorandum Opinion
and Order, 6 FCC Red 4387, 4388 (1991) (“Southern California Broadcasting Co.”). The Commission may also
assess a forfeiture for violations that are merely repeated, and not willful. See, e.g., Callais Cablevision, Inc., Grand
Isle, Louisiana, Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Red 1359 (2001) (issuing a Notice of
Apparent Liability for, inter alia, a cable television operator’s repeated signal leakage). “Repeated” merely means
that the act was committed or omitted more than once, or lasts more than one day. Southern California
Broadcasting Co., 6 FCC Red at 4388, | 5; Callais Cablevision, Inc., 16 FCC Red at 1362, $ 9.
° 47 U.S.C. § 503(b); 47 C.F.R. § 1.80(f).
Federal Communications Commission DA 04-397
Act or a Commission rule. As we set forth in greater detail below, we conclude under this standard that
Cumulus is apparently liable for a forfeiture for its apparent willful violation of section 73.1206 of the
Commission’s rules.
5. Section 73.1206 of the Commission’s rules provides, in pertinent part:
Before recording a telephone conversation for broadcast . . . a licensee shall inform any
party to the call of the licensee’s intention to broadcast the conversation, except where
such party is aware, or may be presumed to be aware from the circumstances of the
conversation, that it is being or likely will be broadcast. Such awareness is presumed to
exist only when the other party to the call is associated with the station (such as [sic]
employee or part-time reporter), or where the other party originates the call and it is
obvious that it is in connection with a program in which the station customarily
broadcasts telephone conversations.
Thus, section 73.1206 requires licensees to so notify parties to a telephone call before it initiates
recordings for simultaneous or later broadcasts. The Commission has stated that “[t]he recording of such
conversation with the intention of informing the other party later -- whether during the conversation or
after it is completed but before it is broadcast -- does not comply with the Rule... .”'' The rule reflects
the Commission’s longstanding belief that prior notification is essential to protect individuals’ legitimate
expectation of privacy, as well as to preserve their dignity by avoidance of nonconsensual broadcasts of
their conversations.'* Thus, the Commission has held that the prior notification requirement ensures the
protection of an individual’s “right to answer the telephone without having [his or her] voice or
statements transmitted to the public by a broadcast station” live or by recording for delayed airing.’
Applying this reasoning, the Commission has defined “conversations” broadly “to include any word or
words spoken during the telephone call,” and specifically has rejected arguments that “utterances made by
parties called in answering the phone” are not subject to the rule’s prior notification requirement.'*
6. Based upon the information before us, it appears that, on March 7, 2003, Cumulus
broadcast a telephone conversation between Mr. Hockert and Ms. Crutchman, without informing Ms.
Crutchman that Cumulus intended to broadcast the conversation, in apparent willful violation of section
73.1206 of the Commission’s rules. In light of this apparent violation, we believe it appropriate that
Cumulus be assessed a monetary forfeiture. The Commission’s forfeiture guidelines establish a base
1 See, e.g., SBC Communications, Inc., Apparent Liability for Forfeiture, Forfeiture Order, 17 FCC Red 7589, 7591,
4] 4 (2002) (forfeiture paid).
1l Station-Initiated Telephone Calls which Fail to Comply with Section 73.1206 of the Rules, Public Notice, 35 FCC
2d 940, 941 (1972) (“1972 Public Notice”).
12 See Amendment of Section 1206: Broadcast of Telephone Conversations, 3 FCC Red 5461, 5463-64 (1988)
(“1988 Order”); 1972 Public Notice, 35 FCC 2d at 941; Amendment of Part 73 of the Commission’s Rules and
Regulations with Respect to the Broadcast of Telephone Conversations, 23 FCC 2d 1, 2 (1970); see also EZ
Sacramento, Inc. and Infinity Broadcasting Corp. of Washington, D.C., 16 FCC Red 4958, 4958 (2002) (finding that
prior notifications “effectively cease” when callers are put on hold, and that thus explicit notice must be given if
stations plan to continue such broadcasts or record such conversations for later broadcasts); Heftel Broadcasting-
Contemporary, Inc., 52 FCC 2d 1005, 1006 (1975) (finding that “cash call” promotions that simultaneously
broadcast, and award prizes based on, parties’ responses in answering the telephone are subject to section 73.1206’s
prior notification requirement).
13 1988 Order, 3 FCC Rcd at 5463.
14 Hefiel Broadcasting-Contemporary, Inc., 52 FCC 2d at 1006 (emphasis added).
Federal Communications Commission DA 04-397
forfeiture amount of $4,000.00 for the unauthorized broadcast of a telephone conversation"? and provide
that base forfeitures may be adjusted based upon consideration of the factors enumerated in Section
503(b)(2)(D) of the Communications Act of 1934, as amended (the “Act”),'° and section 1.80(a)(4) of the
Commission’s rules,'’ which include “the nature, circumstances, extent, and gravity of the violation...
and the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice
may require.”'® Although we commend Cumulus’ efforts to remind its Myrtle Beach on-air employees of
the obligations of section 73.1206, Cumulus’ subsequent remedial efforts do not alter the fact that the
violation took place or justify further mitigation or cancellation of the proposed forfeiture penalty. Based
upon these facts and considering all of the circumstances present here, we find $ 4,000 to be the
appropriate proposed forfeiture amount.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Communications Act of 1934, as amended,” and sections 0.111, 0.311 and 1.80 of the Commission’s
rules,”’, Cumulus Licensing Corp., licensee of Station WSEA(FM), Atlantic Beach, South Carolina, is
hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of four
thousand dollars ($4,000.00) for apparently willfully violating section 73.1206 of the Commission’s rules
on March 7, 2003.7!
8. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the rules,” within thirty
(30) days of this NOTICE OF APPARENT LIABILITY, Cumulus Licensing Corp., SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation
of the proposed forfeiture. Payment of the forfeiture may be made by mailing a check or similar
instrument, payable to the order of the Federal Communications Commission, to Forfeiture Collection
Section, Finance Branch, Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment must include the FCC Registration Number (FRN) referenced above and also
must note the NAL/Acct. No. referenced above.
9. The response, if any, must be mailed to William H. Davenport, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications Commission, 445 12th Street, S.W.,
Room 3-B443, Washington, D.C. 20554 and MUST INCLUDE THE NAL/Acct. No. referenced above.
10. Requests for payment of the full amount of this Notice of Apparent Liability under an
installment plan should be sent to: Chief, Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.”
'S 47 C.F.R. §1.80(b)(4) note. See also Commission’s Forfeiture Policy Statement and Amendment of section 1.80 of
the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Red 17087, 17113 (1997), recon. denied, 15 FCC Red
303 (1999) (“Forfeiture Policy Statement’).
16 47 U.S.C. §503(b)(2)(D).
17 47 C.F.R. §1.80(a)(4).
18 47 C.F.R. §1.80(b)(4) note. See also Forfeiture Policy Statement at 17100-01.
1 47 U.S.C. § 503(b).
2 47 C.F.R. §§ 0.111, 0.311 and 1.80.
21 47 C.F.R. § 73.1206.
2 47 C.F.R. § 1.80.
3 47 C.F.R. § 1.1914.
Federal Communications Commission DA 04-397
11. Under the Small Business Paperwork Relief Act of 2002, Pub L. No. 107-198, 116 Stat.
729 (June 28, 2002), the FCC is engaged in a two-year tracking process regarding the size of entities
involved in forfeitures. If you qualify as a small entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30) days of this NAL, either in your response to
the NAL or in a separate filing to be sent to the Investigations and Hearings Division. Your certification
should indicate whether you, including your parent entity and its subsidiaries, meet one of the definitions
set forth in the list provided by the FCC’s Office of Communications Business Opportunities (OCBO) set
forth in Attachment A of this Notice of Apparent Liability. This information will be used for tracking
purposes only. Your response or failure to respond to this question will have no effect on your rights and
responsibilities pursuant to Section 503(b) of the Communications Act. If you have questions regarding
any of the information contained in Attachment A, please contact OCBO at (202) 418-0990.
12. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail - Return Receipt Requested to Richard S. Denning, General
Counsel, Cumulus Licensing Corp., Building 14, 3535 Piedmont Road, Atlanta, Georgia 30305; and
Lewis J. Paper, Esquire, Dickstein Shapiro Morin & Oshinsky LLP, 2101 L Street NW, Washington, D.C.
20037-1526.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
Federal Communications Commission DA 04-397
Attachment A
FCC List of Small Entities
As described below, a “small entity” may be a small organization,
a small governmental jurisdiction, or a small business.
(1) Small Organization
Any not-for-profit enterprise that is independently owned and operated and
is not dominant in its field.
(2) Small Governmental Jurisdiction
Governments of cities, counties, towns, townships, villages, school districts, or
special districts, with a population of less than fifty thousand.
(3) Small Business
Any business concern that is independently owned and operated and
is not dominant in its field, and meets the pertinent size criterion described below.
Industry Type Description of Small Business Size Standards
Cable Services or Systems
Special Size Standard —
Cable Systems Small Cable Company has 400,000 Subscribers Nationwide
or Fewer
Cable and Other Program Distribution
Open Video Systems $12.5 Million in Annual Receipts or Less
Common Carrier Services and Related Entities
Wireline Carriers and Service providers
Local Exchange Carriers, Competitive
Access Providers, Interexchange Carriers, 1,500 Employees or Fewer
Operator Service Providers, Payphone
Providers, and Resellers
Note: With the exception of Cable Systems, all size standards are expressed in either millions of
dollars or number of employees and are generally the average annual receipts or the average
employment of a firm. Directions for calculating average annual receipts and average
employment of a firm can be found in
13 CFR 121.104 and 13 CFR 121.106, respectively.
Federal Communications Commission
International Services
International Broadcast Stations
International Public Fixed Radio (Public and
Control Stations)
Fixed Satellite Transmit/Receive Earth
Stations
Fixed Satellite Very Small Aperture
Terminal Systems
Mobile Satellite Earth Stations
Radio Determination Satellite Earth Stations
Geostationary Space Stations
Non-Geostationary Space Stations
Direct Broadcast Satellites
Home Satellite Dish Service
$12.5 Million in Annual Receipts or Less
Mass Media Services
Television Services
Low Power Television Services and
Television Translator Stations
TV Auxiliary, Special Broadcast and Other
Program Distribution Services
$12 Million in Annual Receipts or Less
Radio Services
Radio Auxiliary, Special Broadcast and
Other Program Distribution Services
$6 Million in Annual Receipts or Less
Multipoint Distribution Service
Auction Special Size Standard —
Small Business is less than $40M in annual gross revenues
for three preceding years
Wireless and Com
mercial Mobile Services
Cellular Licensees
220 MHz Radio Service — Phase I Licensees
1,500 Employees or Fewer
220 MHz Radio Service — Phase II
Licensees
700 MHZ Guard Band Licensees
Private and Common Carrier Paging
Auction special size standard -
Small Business is average gross revenues of $15M or less for
the preceding three years (includes affiliates and controlling
principals)
Very Small Business is average gross revenues of $3M or
less for the preceding three years (includes affiliates and
controlling principals)
Broadband Personal Communications
Services (Blocks A, B, D, and E)
1,500 Employees or Fewer
Broadband Personal Communications
Services (Block C)
Broadband Personal Communications
Services (Block F)
Narrowband Personal Communications
Services
Auction special size standard -
Small Business is $40M or less in annual gross revenues for
three previous calendar years
Very Small Business is average gross revenues of $15M or
less for the preceding three calendar years (includes affiliates
and persons or entities that hold interest in such entity and
their affiliates)
Rural Radiotelephone Service
Air-Ground Radiotelephone Service
1,500 Employees or Fewer
800 MHz Specialized Mobile Radio
900 MHz Specialized Mobile Radio
Auction special size standard -
Small Business is $15M or less average annual gross
revenues for three preceding calendar years
7
DA 04-397
Federal Communications Commission
Private Land Mobile Radio
1,500 Employees or Fewer
Amateur Radio Service
N/A
Aviation and Marine Radio Service
Fixed Microwave Services
1,500 Employees or Fewer
Public Safety Radio Services
Small Business is 1,500 employees or less
Small Government Entities has population of less than
50,000 persons
Wireless Telephony and Paging and
Messaging
1,500 Employees or Fewer
Personal Radio Services
N/A
Offshore Radiotelephone Service
1,500 Employees or Fewer
Wireless Communications Services
39 GHz Service
Small Business is $40M or less average annual gross
revenues for three preceding years
Very Small Business is average gross revenues of $15M or
less for the preceding three years
Multipoint Distribution Service
Auction special size standard (1996) —
Small Business is $40M or less average annual gross
revenues for three preceding calendar years
Prior to Auction —
Small Business has annual revenue of $12.5M or less
Multichannel Multipoint Distribution
Service
Instructional Television Fixed Service
$12.5 Million in Annual Receipts or Less
Local Multipoint Distribution Service
Auction special size standard (1998) —
Small Business is $40M or less average annual gross
revenues for three preceding years
Very Small Business is average gross revenues of $15M or
less for the preceding three years
218-219 MHZ Service
First Auction special size standard (1994) —
Small Business is an entity that, together with its affiliates,
has no more than a $6M net worth and, after federal income
taxes (excluding carryover losses) has no more than $2M in
annual profits each year for the previous two years
New Standard —
Small Business is average gross revenues of $15M or less for
the preceding three years (includes affiliates and persons or
entities that hold interest in such entity and their affiliates)
Very Small Business is average gross revenues of $3M or
less for the preceding three years (includes affiliates and
persons or entities that hold interest in such entity and their
affiliates)
Satellite Master Antenna Television
Systems
$12.5 Million in Annual Receipts or Less
24 GHz — Incumbent Licensees
1,500 Employees or Fewer
24 GHz — Future Licensees
Small Business is average gross revenues of $15M or less for
the preceding three years (includes affiliates and persons or
entities that hold interest in such entity and their affiliates)
Very Small Business is average gross revenues of $3M or
less for the preceding three years (includes affiliates and
persons or entities that hold interest in such entity and their
affiliates)
Miscellaneous
On-Line Information Services
$18 Million in Annual Receipts or Less
Radio and Television Broadcasting and
Wireless Communications Equipment
Manufacturers
750 Employees or Fewer
DA 04-397
Federal Communications Commission
DA 04-397
Audio and Video Equipment Manufacturers
Telephone Apparatus Manufacturers
(Except Cellular)
1,000 Employees or Fewer
Medical Implant Device Manufacturers
500 Employees or Fewer
Hospitals
$29 Million in Annual Receipts or Less
Nursing Homes
$11.5 Million in Annual Receipts or Less
Hotels and Motels
$6 Million in Annual Receipts or Less
Tower Owners
(See Lessee’s Type of Business)